ROSALYN MOREHEAD, ROSA MARTINEZ, CESAR LAFONTAINE, BAL MARAJ AND INDRA MARAJ, PLAINTIFFS-APPELLANTS,v.THE BOARD OF ADJUSTMENT OF THE BOROUGH OF FORT LEE; THE MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE; THE CONSTRUCTION OFFICIAL AND ZONING OFFICER OF THE BOROUGH OF FORT LEE AND THE MADONNA CEMETERY AND MAUSOLEUM, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1175-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued April 5, 2011

Before Judges Fuentes, Nugent and Newman.

Plaintiffs are residential homeowners who live across the street from the Madonna Church, cemetery, and mausoleum. The church sought to expand its existing mausoleum because it was almost full to capacity and there was a growing scarcity of depositories for the dead in the area. As a conditional use in a residential zone, the mausoleum expansion was subject only to height and setback restrictions. A variance was eventually secured from defendant Board of Adjustment of the Borough of Fort Lee (the Board). The action of the Board, granting the variance and approving the preliminary and final site plan application, was affirmed by the Law Division judge. Plaintiffs appeal. We affirm, but remand to the Board for clarification on a setback requirement.

Judge Toskos in his written opinion of January 15, 2010, summarized the testimony of the various witnesses who appeared before the Board and then described the Board's resolution in the following terms:

In its fourteen page resolution, the Board made several findings of facts, based upon the testimony and exhibits submitted during the hearings. The Board found that the property commonly known as 610 Church Lane contained an existing mausoleum, the expansion of which was the subject of the application. The proposed mausoleum would be constructed on an area currently used for parking and located between the existing church and the Church Lane right-of-way. The addition would provide for 3,072 entombments and 744 crematorium niches. The existing mausoleum is operating at approximately 94% capacity and will soon be completely full. With the exception of a public school, the property is located in essentially a residential neighborhood. The Board found that the proposed mausoleum is a conditional use pursuant to §410-36B of the Borough's Zoning Ordinance. The Board also determined that the proposal met all the conditions but that the application was also subject to the height restrictions for the R-2 zone. The Board found there would be a net increase in parking that would result from approval of the application. Thereafter, the Board determined that not only would approval of the application result in a new increase in parking, but the proposed sidewalk improvements would also benefit pedestrian traffic.

The Board found credible the testimony [of] the witnesses presented on behalf of the applicant. After hearing the testimony of the various witnesses, the Board determined that the site was chosen because of the necessity to connect utilities on the ground floor of the existing mausoleum with the new addition. The location would also allow for use of the church in funeral services. The Board also noted that the proposed addition would be approximately forty-two feet high. The height restriction under the zoning code is twenty-eight feet to mid-roof. Since many of the residential structures had peaked roofs, the actual height of many residential structures in the area was approximately thirty-two feet. The Board found credible the testimony of the applicant's planner, and concluded that the site was particularly suited for mausoleum use. It further found that the granting of the application would result in improvement in parking and in pedestrian access. The Board also found significant the extensive evergreen buffer proposed. The Board concluded that the buffer would greatly reduce any adverse impact to the aesthetics of the neighborhood. The Board also found that the cemetery had been located in that area since the middle of the nineteenth century. Its existence, along with the church, predated any residential development in the area. The Board concluded that based on the testimony of Reverend Carey, there was a need for a mausoleum to provide burials in the area. The Board found that this function is an inherently beneficial use. The Board determined that any adverse impact to the surrounding area had already been accounted for by the previously constructed cemetery, church and mausoleum.

In discussing the variance from the height requirement of the ordinance, Judge Toskos had this to say.

In this matter, the record reveals credible testimony supporting the Board's decision as to the suitability of the mausoleum on this specific site. The R-2 zone permits cemeteries as a conditional use. It is undisputed that under Fort Lee Ordinance §410-36B, a mausoleum is a permitted conditional use. In this instance, the proposed mausoleum complied with all the conditions of Ordinance §410-36B. The zoning officer determined that the height requirements for the R-2 zone would apply to the proposed mausoleum. The height being the condition at issue, the applicant presented evidence that the existing mausoleum is nearly four feet taller than the proposed addition. Furthermore, the R-2 zoning height restriction was imposed for residential structures which are very different from a structure like a mausoleum, which is not used for residential purposes at all. The proposed addition would include a sidewalk to improve pedestrian access to the mausoleum. The addition would also result in a net gain of nineteen parking spots. The applicant provided testimony that even if the proposed addition is approved, traffic would generally stay the same.

The court then went on to consider the positive criteria that must be established under N.J.S.A. 40:55D-70(d) in order for a variance to be granted:

In proving the "positive criteria," the applicant proved that there is a need for entombments in the area. The proposed mausoleum addition promotes the general welfare by addressing this need. In addition, the granting of the application would result in an increase in parking spaces, improved pedestrian access to the church and extensive landscaping. The record reveals that there exists a functional practicality to locating the proposed addition next to the existing church and mausoleum. As a result, the [c]court finds it reasonable that the Board determined that the site continued to be appropriate notwithstanding the deviation from the R-2 height requirement. As such, the Board's decision that the applicant met the positive criteria was not arbitrary, capricious or unreasonable.

Judge Toskos then addressed the negative criteria that also must be satisfied if a variance is to be granted under N.J.S.A. 40:55D-70.

To receive a use variance, an applicant must also satisfy the "negative criteria[."] Essentially there are two prongs:

(1) that the variance can be granted "without substantial detriment to the public good."

(2) [t]hat the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance."

For the first prong, the focus is on the effect the grant of the variance has on surrounding properties. At the hearings, the objectors provided testimony from a real estate appraiser who opined that construction of the proposed addition would have a detrimental effect on the property values of the nearby homes. However, when questioned, the real estate appraiser also testified that the existing mausoleum had already diminished the value of the surrounding properties. Furthermore, the surrounding neighbors were concerned about the loss of their aesthetic view of the church. The applicant provided testimony that extensive landscaping will be added to increase aesthetics for the nearby residents. Additionally, the applicant provided testimony that the addition will not affect or increase any traffic concerns that already exist, but instead would provide additional parking spaces and increase pedestrian safety.

For the second prong, the Board must be satisfied that the grant of the variance would not substantially impair the intent and purpose of the zone plan and zoning ordinance. The Board found that cemeteries are a permitted conditional use in the R-2 zone. The only condition the applicant could not comply with is the height restriction. However, this height restriction is for residential structures [and] while the height restriction is limited to twenty-eight feet at mid-roof, the top of a typical residential peaked roof is thirty-two feet. Considering the testimony of the applicant's planner, the fact that the proposal met all the conditions of Ordinance §410-39B [sic], the fact that the mausoleum is a permitted conditional use and the fact that there presently exists a cemetery and mausoleum, the Board was not arbitrary, capricious or unreasonable in considering that the negative criteria were met.

On appeal, plaintiffs do not directly challenge the granting of the height variance on an alleged failure to prove the positive and negative criteria for this inherently beneficial use. Moreover, plaintiffs do not oppose the mausoleum expansion, but rather direct its opposition at the site selected for that expansion.

In this connection, plaintiffs argue that the Board should have insisted that the church consider expanding the mausoleum to an alternate site, which would not have blocked the residents' view of the historic church, adversely affected their property values, and may not have even required a variance.

The Board was limited to considering matters within the powers enumerated in N.J.S.A. 40:55D-70. See Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54 (1998) (citations omitted). The statute speaks in terms of a zoning ordinance. See N.J.S.A. 40:55D-70. The pedigree of a zoning ordinance is solely municipal, as it is created by a "governing body," which is "the chief legislative body of the municipality," N.J.S.A. 40:55D-4, after the planning board's adoption of certain elements of a master plan created "to guide the use of lands within the municipality" in a specified manner, N.J.S.A. 40:55D-28(a), N.J.S.A. 40:55D-62(a). Thus, because the ordinance from which appeals, interpretations, or variances are sought from the zoning board, see N.J.S.A. 40:55D-70; Paruszewski, supra, 154 N.J. at 54 is municipal in character, such a board lacks any authority to account for the conditions or requirements other municipalities might place on land within their bounds. See William M. Cox & Stuart R. Koenig, New Jersey Zoning and Land Use Administration §28-3.4 (2011) (noting that boards may not "hear appeals or grant relief from the provisions of any ordinance other than the zoning ordinance," and "may not act on matters which are under the exclusive jurisdiction of another agency, whether municipal, county or state"). Consequently, there was no error in barring plaintiffs from cross-examining on alternate sites or locations for the expansion.

Plaintiffs also contend that the mausoleum was not "public" because it was not open to all, but limited to those of the Catholic faith or those married to a Catholic. A public mausoleum can be limited to persons of a specific faith.

"Public" as distinguished from "private" is what is significant. A "private mausoleum" is a "mausoleum constructed by or for a plot owner and not owned by [a] cemetery." N.J.S.A. 45:27-2. A "public mausoleum" is defined as: a mausoleum, built in accordance with regulations of the Department of Community Affairs, owned by a cemetery or cemetery company with the intention of use of interment spaces in it by the general public. A mausoleum is distinguished from a single or multiple vault in that it is a single integrated structure assembled on the premises. It shall not consist of one or more vaults constructed off the cemetery premises and installed singly or in series at the cemetery premises. [Ibid.]

The distinction between a public and private mausoleum, as statutorily defined, is not based on religious affiliation, but rather on plot ownership. See ibid. Thus, the Madonna mausoleum, as defined by statute, is "public." As a further consequence, only height and setback requirements would apply under N.J.S.A. 45:27-27(e) and not all of the bulk requirements for that zone.

Plaintiffs also argue that air conditioners are a "structure" which cannot be permitted in a front or side yard. As a result, it is asserted that the air conditioners could not be located where noted on the site plan. Plaintiffs are mistaken; air conditioners are not "structures." Additionally, plaintiffs' contention goes beyond the Board's consideration of height and setback requirements. See N.J.S.A. 45:27-27(e).

Plaintiffs also contend that information about the volume of noise generated by both air conditioners was not presented to the Board. Simply put, noise control is not a matter for the Board's consideration. There are separate noise control ordinances, see Fort Lee, N.J., Noise Ordinances §§ 284-1 to -10, including one that applies to air conditioners, see Fort Lee, N.J., Noise Ordinance § 284-3(B)(17). Notwithstanding, the church agreed to relocate the air conditioners to a less visible location with screening. This less obtrusive location with appropriate soundproofing could be made, according to the church, a condition of any site plan approval.

Plaintiffs further contend that the cancellation of the August 26, 2008 meeting when their planning expert would be available, with the Board knowing that their expert was not available for the August 12, 2008 meeting, unfairly impacted plaintiffs' challenge to the application. Cancellation of the meeting was to allow Board members to enjoy an extended break over the course of the year which would extend into the Labor Day weekend. It was acknowledged that this was a common practice in the area among Zoning Boards of Adjustment. The Board, therefore, agreed to accommodate plaintiff by accepting as evidence a proffer of the planning expert's testimony. According to plaintiffs' attorney, the planning expert would have testified to the blocking of open space, light, and air, by granting a height variance in excess of the limit for the surrounding residential housing. Plaintiffs did not have a report from the planning expert, although such a report would have been accepted as an exhibit before the Board according to the Board's attorney's representation on the record.

We also note that this application had been delayed from the time it was filed because of the shuffling back and forth between the Planning Board and the Zoning Board as to where jurisdiction would lie. Under statutory authority, the Board was limited to deciding the matter in a fixed timeframe from the date of the filing unless the applicant consented to a further extension. See N.J.S.A. 40:55D-76(c) (providing for approval of an application upon inaction within 120 days of filing unless consent is given). Here, the applicant declined to consent because of the prior delays. It was further noted that plaintiffs' attorney had been granted a prior adjournment.

Thus, the Board was obliged to act within the August 12 timeline. We are satisfied that the Board made an appropriate accommodation to plaintiffs' attorney and that there was no unconstitutional infringement or unfair impact on plaintiffs' challenge to the variance request.

Plaintiffs also contend that the opinion of the applicant's real estate appraiser, Anthony Rinaldi, that the houses on Church Lane would not be diminished in value by the mausoleum expansion was a net opinion. Not so. Rinaldi provided a record of recent sales on Church Lane, which supported his opinion that the value of residences would not be impacted by the expansion. There was already a mausoleum in existence and Rinaldi concluded that it had not had a negative impact on property values. Furthermore, Rinaldi noted that the proposed mausoleum expansion was at least eighty feet away from the houses on Church Lane.

By contrast, plaintiffs' real estate appraiser, Donald Helmstetter, provided no testimony on sales in the area. He relied on what he called "curb appeal"--a buyer's view of the surrounding neighborhood. He arbitrarily reduced the value of the homes by ten to fifteen percent, should the addition be built. The Board did not find his testimony persuasive and rejected it. We discern no error in the Board's evaluation of the real estate appraisers' testimony.

Plaintiffs also contend that there were not enough parking spaces for mausoleum visitations. There are no numerical requirements for parking spaces correlated to mausoleum visitations in the Fort Lee ordinance. See Fort Lee, N.J., Zoning Ordinance § 410-40. Moreover, the scope of the Board's review on this expansion application did not bring into play the number of parking spaces. See N.J.S.A. 45:27-27(e).

With regard to the certificate of approval issued by the Department of Community Affairs (DCA), compliance with DCA requirements is necessary to assure the structural integrity of the mausoleum. Plaintiffs argue that, contrary to the church's representations as to DCA approval of the construction, DCA does not assess need or location of such projects. N.J.S.A. 45:27-27, in particular section (b), describes DCA's role in approving the construction of such projects.

Moreover, there was compliance with the DCA's requirements and a certificate of approval had been issued to the church by the DCA. The actual construction was subject to inspection and local approvals through the Fort Lee construction official. See N.J.S.A. 45:27-27(a), -27(c), -27(d).

Plaintiffs also challenge the conditional use ordinance as being invalid. Plaintiffs contend that it was not sufficiently definite and should be declared void.

Zoning ordinances enjoy a "presumption of validity," which can be "overcome only if an opponent . . . establishes the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 380 (1995) (alteration in original) (quoting Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 (1973)). A municipal zoning ordinance may permit "conditional uses to be granted by the planning board according to definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit and extent." N.J.S.A. 40:55D-67(a). The governing body charged with creating a zoning ordinance, see N.J.S.A. 40:55D-62(a), cannot delegate that authority to the local planning board by drafting a conditional-use ordinance that lacks sufficient standards to limit the planning board's discretion. PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 8-9 (1987).

The Borough's conditional use ordinance for cemeteries does not suffer from such a deficiency, as it includes two clearly defined conditions: (1) a ten-foot minimum setback for interments, and (2) a screening provision by reference to Fort Lee, N.J., Zoning Ordinance § 410-32. See Fort Lee, N.J., Zoning Ordinance § 410-36(B). That provision, in turn, requires for enclosed uses: a fence or a visual screen as may be required by the Planning Board, designed to produce a dense cover consisting of evergreen or evergreen-type hedges or shrubs, spaced at intervals of not more than six feet, located and maintained in good condition within 10 feet of the property line." [Fort Lee, N.J., Zoning Ordinance § 410-32(A).]

The type of vegetation, spacing, and setback are provided. See ibid. The ordinance also requires maintenance of the fencing or landscaping. Fort Lee, N.J., Zoning Ordinance § 410-32(C). Further, the height requirement the Board applied to the church's application can be determined with reference to the zoning schedules, as Fort Lee, N.J., Zoning Ordinance § 410-36(B) states that cemetery uses must "comply with all state and local regulations regarding same." See Fort Lee, N.J., Zoning Schedule IV-2, Part I, Area, Bulk and Yard Requirements.

N.J.S.A. 45:27-27(e), in turn, permits local zoning of height and setback of mausoleums. Accordingly, plaintiffs' challenge to the validity of the ordinance is rejected.

Plaintiffs assert that there was a need for a rear yard setback variance. The Board's resolution did not mention whether a variance was granted or whether the plan for the expansion satisfied that setback. According to the table in the resolution comparing the standards of the R-2 zone to the proposed mausoleum expansion, the minimum rear yard setback required "25% of lot depth; not to exceed 40 (feet)." The relevant schedule to the zoning ordinances indicates that the rear yard should be a minimum of twenty-five percent of the lot depth, and "[n]eed [n]ot [e]xceed 40 [f]eet." Fort Lee, N.J., Zoning Schedule IV-2, Part 1, Area, Bulk and Yard Requirements. Thus, in view of the proposed lot depth, a minimum of forty feet was required and the proposed plan called for 4.87, ostensibly indicating that a variance was required. This subject matter was not discussed further in the resolution, nor was it referred to in the Law Division judge's opinion. We note that the chart just mentioned appears to have derived from the June 6, 2008 Borough Planner's report, which relied on the church's application materials. The 4.87 number may very well be a typographical error, given that twenty-five percent of the proposed 194.96-foot lot depth is 48.74 feet. We need clarification from the Board whether this was a typographical error and no variance was required; or if a variance was required, and the Board did not address the issue. If the latter was the case, then the Board should determine whether a variance could be appropriately granted.

We affirm substantially for the reasons expressed in Judge Toskos's written opinion of January 15, 2010.

Affirmed on the grant of the height variance and site plan approval; remanded for clarification on the rear yard setback. Jurisdiction is not retained.

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